Saturday, February 09, 2008

Supporters of the Second

Some good news on the Second Amendment front: Respondents in the Heller case filed their reply brief -- which is quite good -- and Vice President Dick Cheney along with 55 members of the Senate and 250 members of the House (a majority of both houses!) co-signed a brief supporting Respondents. Recall that last month, the Bush Administration filed a disappointing brief supporting the "individual rights" interpretation but recommending the case be remanded to the D.C. Circuit for consideration under a more flexible standard of review. Through outside counsel, the District's brief insists the Second Amendment is a "collective" right covering only members of the organized militia. By contrast, NRA supported the individual rights view.

Two arguments from this week's briefs that caught my eye:
  1. Heller's brief highlights the broad reach of current D.C. law (Section 7-2502.02) by reference to a late-70s decision by the DC Court of Appeals (the DC equivalent of a state supreme court) called McIntosh v. Washington, 395 A.2d 744, 755 (D.C. 1978), reading the gun ban as precluding virtually all armed self-defense. As counsel for Heller says (at 54):
    Respondent would not quarrel with a true "safe storage" law, properly crafted to address Petitioners’ stated concerns. But as McIntosh reveals, the city said what it meant and meant what it said in prohibiting armed self-defense inside private homes. The law, as written and defended by the city, is unconstitutional.
  2. The Congressional brief (at 36) rebuts DoJ:
    [E]ven if this Court applied a lower “reasonableness” test as the standard of review, the District’s handgun ban is unreasonable on its face. The lower court’s categorical approach in holding a prohibition on handguns to be unconstitutional per se was correct. . . This case involves nothing more than the right of law-abiding persons to keep common handguns and usable firearms for lawful self-defense in the home. Accordingly, no purpose would be served by remanding this case for further fact finding or other proceedings.
Oral argument in Heller is set for March 18th.

2 comments:

Bob McCarty Writes said...

After watching a local St. Louis television station’s interview of City Attorney John Hessel, I couldn’t help but think how he and other victims of Thursday night’s shooting tragedy in Kirkwood, Mo., might have fared better with the help of concealed firearms.

Among the 30 or so gathered in the Kirkwood City Hall meeting room that night, only one trained and qualified person — Officer Tom Ballman — carried a firearm. Had only one other trained person carried a firearm into the meeting that night, the number of dead and wounded might have been greatly reduced. Surprisingly, Kirkwood city laws don’t entirely prevent it!

Read more about it here.

Carl said...

B_M_W:

I agree.